“Medical negligence at Gate Hospital takes life of police constable in Guwahati” read a news alert on an online news Portal. You might have noticed such innumerable headlines and being in the noble profession as a medical practitioner have come across such allegation against you or your colleague.
In the above instance, the kin of the deceased alleged that the hospital authorities did not provide proper treatment to the patient, who was suffering from a non-lethal disease. The deceased was allegedly kept under ventilation and his family was only informed of his death a day after his death. The kin has also accused the hospital of keeping the patient in the ventilator to work up a larger payout at the end. The deceased was earlier admitted to the GMCH for treatment, but the family was asked to shift to a different hospital. An FIR has been lodged against the hospital authorities.
There has been a significant rise in litigations against medical professionals. A growing awareness about patients’ rights, medical exposure, timely judicial intervention and perceptible decline in professional standards maintained by a part of medical fraternity are some of the reasons responsible for this spurt of litigation against doctors, which has resulted in stigma on the meritorious career of the medical practitioner.
In most of the cases Doctors as noted in instance above are the first to be blamed even when they might not have committed the mistake. Legal suites are filed against doctors on the pretext of negligence, corruption and their wrong professional decisions. Non-medical investigating agencies do treat all above allegations as malpractice and prepare a ground for litigation against doctors.
In this Article, an attempt is made to educate the Doctors and their rights in the midst of Allegations, which May or may not be True.
What is Negligence?
In Poonam Verma v. Ashwin Patel & Ors, the Supreme Court held that
“Negligence has many manifestations —it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence or Negligence per se.”
Before we learn on protective actions that the Doctors can take, let us understand the term “Medical negligence”.
What is Medical Negligence?
In Jacob Mathew v. State of Punjab & Another, the Supreme Court while dealing with the case of negligence of medical profession has observed as under:
Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance, which such a professional can give or can be understood to have given by implication, is that he is possessed of the requisite skill in that branch of profession, which he is practicing, and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is what the entire person approaching the professional can expect.
Judged by this standard, a professional may be held liable for negligence on one of two findings:
The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession.
In Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others, the court noticed that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
Medical Negligence under Section 304A of IPC
In Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra while dealing with Section 304A of IPC (death caused by negligence), the statement of law by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap, was cited with approval:
“To impose criminal liability under Section 304A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another’s negligence. It must be the causa causans (the immediate cause; the last link or causation); it is not enough that it may have been the causa sine qua non (Not the cause of which the proximate cause is an effect, but the nearest cause of the damage or effect for which relief is being sought).”
Principles to be followed while deciding case of medical negligence
In Kusum Sharma & Ors vs Batra Hospital &Medical Research the Supreme Court enumerated the following principles to be followed while deciding whether medical professional is guilty of medical negligence:
1. Negligence is the breach of a duty exercised by omission to do something that a reasonable man, guided by those considerations that ordinarily regulate the conduct of human affairs, would do, or doing something that a prudent and reasonable man would not do.
2. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
3. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
6. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken, higher element of risk to redeem the patient out of his/her suffering which not yield the desired result may not amounted to negligence.
7. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
9. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
10. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
11. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
Like there is no single medicine to cure all the illness there is no straightforward legal remedy to determine as to when the cause of action has accrued to the consumer.
In V.N.Shrikhande vs Anita Sena Fernandes [(2011) 1 SCC 53] the Supreme Court had held that in cases of medical negligence, no straitjacket formula can be applied for determining as to when the cause of action has accrued to the consumer. Each case is to be decided on its own facts. If the effect of negligence on the doctor’s part or any person associated with him is patent, the cause of action will be deemed to have arisen on the date when the act of negligence was done. If, on the other hand, the effect of negligence is latent, then the cause of action will arise on the date when the patient or his representative- complainant discovers the harm/injury caused due to such act or the date when the patient or his representative-complainant could have, by exercise of reasonable diligence discovered the act constituting negligence.
LAW & LIFE by playing a major role in imparting valuable suggestions to Doctors at large about medical negligence has established its own significance. Cases against doctors, nurses, and hospitals are the most difficult and complex lawsuits that lawyers in India handle. These actions needs to be strongly defended by the doctors’ community and are rarely settled before going to trial. Very few law firms in India are well recognized as an expert in this area of the law. LAW & LIFE Advocates is one of those firms.